¶1dissenting in part and concurring in part: I join Chief Justice McFarland’s dissent. Additionally, although I concur in the majority’s holding that rape can occur post-penetration, I dissent from the majority’s conclusion that a defendant who is charged with rape under K.S.A. 2004 Supp. 21-3502(a)(l)(A) “is entitled to a reasonable time in which to act after consent is withdrawn.”
¶2The majority does not explain how a juiy should interpret “reasonable time” when a defendant is charged with rape under K.S.A. 2004 Supp. 21-3502(a)(l)(A), which requires the State to prove the victim was overcome by force or fear. There are two possible readings of the majority holding. The presence of an ambiguity is, in itself, troubling. Additionally, both of the potential interpretations are problematic.
¶3Under one interpretation, the majority, by allowing a reasonable time to act, may be implicitly recognizing that persistence is sufficient to satisfy the requirement of force after penetration has occurred. Yet, the majority would reverse the conviction in this case because the prosecutor stated, “The force of his penis in her vagina is enough under the law of the State of Kansas.” Does this mean that tire physical contact inherent in intercourse cannot satisfy the element of force when there is no consent before penetration but may be sufficient force to constitute rape when the consent is withdrawn post-penetration? The potential dichotomy is troubling.
¶4The alternative reading is even more troubling. If the majority opinion is read to require more force than mere persistence, the effect of tire ruling is to grant a defendant a safe harbor of “reasonable time” during which the defendant may exert this higher degree of force or strike fear in the victim.
¶5*425I would hold that a defendant has committed rape if, after consent is withdrawn, the act of intercourse continues as the result of force or fear. This holding is consistent with the elements defined by K.S.A. 2004 Supp. 21-3502(a)(l)(A). The court should not judicially add a defense allowing a reasonable time in which to commit rape.